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THE LAW IS A ASS for 03/20/2001
DOCKET ENTRY
"The Law is a Ass" Installment # 87
Originally written as installment # 76 and published in Comics Buyer's Guide issue # 656, June 13, 1986 issue
Copyrights, Part II.
What, you were expecting a long docket entry? You got that in Part I.
******
"The Law is a Ass"
Installment # 86
by
Bob Ingersoll
Last time out I ran the first part of a two-part column on copyright law for would-be comic creators. This is the second part. Just thought I'd clear that up for you.
In part one, I told you that a copyright is the statutorily created and exclusive right to make and sell copies that a creator has in any work of art he created. Copyrights come into being automatically, when the work is finished, and can be sold to another. When a publisher buys your story, what it's really buying is your right to make and sell copies, thereby giving the publisher the right to make and sell copies. After all, publishers wouldn't stay in business very long, if they bought stories, but couldn't publish them.
I'm sorry, I can't go into more detail. If I did, then what should be the second part would actually reprint the first part, and the second part would become the third part. (On the other hand, I could print the same column forever and make a fortune. Nah. Just because Chris Claremont keeps writing the same story, doesn't mean everybody can get away with it.) This time around, I want to cover what copyright infringement is and how it happens.
Copyright infringement's when one copies another's creation.
Please note: I used the word creation not story. You can copyright any artistic creation: a story, a drawing, a painting, a statute, a computer program, anything which is an original creation and which can be put into physical form can be copyrighted.
You don't have to have an exact copy in order to have infringement. In fact, very few infringements are exact copies. Only a moron would try to pass off an exact duplicate as an original creation. "Here, Mr. Doubleday, I really think you'll like my new book. It's called Cujo." Although, some have done just that. And, so as not to mislead you, an exact copy of someone else's copyrighted work is, indeed, copyright infringement. But so are copies that aren't exact duplicates only too close to the original for comfort. Exact copies are easy to deal with. So let's look at what kind of similarities can result in copyright infringement.
All creations are an arrangement of something. A story is an arrangement of characters and incidents. An article an arrangement of ideas. A drawing an arrangement of lines and colors. A computer program an arrangement of commands. The arrangements are not, however, random; taken together they form some sort of unified whole, Heavy Metal stories not withstanding. If Mr. B makes an arrangement of something which forms a unified whole but happens to copy Mr. A's copyrighted unified arrangement of something; Mr. B has infringed on Mr. A's copyright. Now who can give us some examples?
The incidents and drawings of the original Captain Marvel stories were so similar to the incidents and drawings of Superman stories, that a federal court ruled Captain Marvel infringed on Superman's copyright. Yes, I know many deny it, but that's the facts. I know, I read the cases for an earlier column. A federal court did rule that Captain Marvel infringed on DC's copyright on Superman.
The arrangement of notes of My Sweet Lord were so similar to the arrangement of notes in He' s So Fine, that a jury ruled it to be infringement. Yes, I know even more people dispute this one, but it's still the fact that a jury found copyright infringement.
The concept of the TV show Future Cop was so similar to the Harlan Ellison/Ben Bova story "Brillo", that a jury ruled it to be an infringement.
Now, what's the moral here? If you've seen it somewhere before, don't do it. Not only is it copyright infringement, but you probably won't do it as well as the original anyway. And even if you can do it better, it's still been done already, so why bother. Why not devote that creativity to something original?
You don't have to copy an entire work in order to infringe on copyright. If you copy just part of another work and put it into an otherwise original creation, that is also infringement. An example of this is a little seen episode of the original Twilight Zone called "Sounds and Silences," a story about a rather boorish individual who loved loud noises and louder speech and who got his Serlingesque comeuppance when he suddenly was unable to hear anything. The problem was that a rejected script someone had submitted unsolicited called "The Sound of Silence" was about a man who could not hear anything. When "Sounds and Silences" aired during Twilight Zone's fifth season, the person who wrote "The Sound of Silence"--no it wasn't Paul Simon, this was years before his song--sued for copyright infringement. The subsequent suit was settled out of court when Serling paid the other writer a cash award. Serling did not copy the other script's plot or words (except for a similarity in title), but because a major element of both stories was a man's loss of hearing through some unknown element, there was enough of an infringement to support a successful suit.
For the record, the reason this was a little-seen episode of the show was that the suit was pending when the original syndication package was assembled, so that episode was kept out of the syndication package. It has nothing to do with the fact that the episode wasn't one of the best. And, since that time, suit has been settled and the episode is included in some Twilight Zone compilations, such as the Columbia Video Library tapes.
A story doesn't take from only one source. If it takes liberal doses of several different sources then, like non-Wendy's processed chicken, fuses these little pieces parts into one big part, it's a form of infringement called Fragmented Literal Similarity. Incidentally, I learned the term not from law school but from Harlan Ellison, who kindly called me up to tell me of his experience with the movie, The Terminator.
The Terminator was about a cyborg soldier/assassin from the future who goes back into the past kill the mother of the major resistence leader. before she had a chance to bear said leader. A soldier from the resistence also came back to prevent the past from being changed and to insure that his future stayed intact, and these two future soldiers fought in the present.
Harlan sued over The Terminator. He found similarities in the movie and his Outer Limits episodes "Soldier" and "Demon With a Glass Hand" as well as his Star Trek story, "City On the Edge of Forever". He settled the case out of court for some money and screen credit. That's why The Terminator now carries an acknowledgment "to the works of Harlan Ellison."
Having seen both, I see Harlan's argument. An argument which was not made any weaker by the fact that the opening shot of The Terminator is a duplication of the opening shot of "Soldier".
Thanks, Harlan. I mean I know I would never have come up with the phrase Fragmented Literal Similarity on my own.
Not every form of copyright infringement is actionable. The copyright law has a very important exception carved into it called the Fair Use Doctrine. What that does is to remove from the definition of copyright infringement brief, limited use of someone else's copyrighted material for scholarly purposes, reviews, satire, personal use, and the like. (The list is meant as an illustration only, and is not intended to encompass the entirety of Fair Use.)
What does this mean? It means you can tape shows with your VCR, so that you can watch them later. You can include brief passages of a book in a review. Mad Magazine can do parodies of movies. And you can photostat articles as research for your term paper. Again this is illustrative not complete. But it's all fair use.
Care must be taken with Fair Use. The Fair Use must be limited. If it is too long, the use becomes unfair infringement. For example, renting a movie for your VCR and charging admission isn't Fair Use. Not only are you making use of the movie in its entirety not a brief excerpt, but the use is commercial not personal. Another example is Wolveroach.
Wolveroach was a satire of Wolverine which appeared in three issues of Cerebus. Wolveroach wore a duplicate of Wolverine's costume and was the only figure to appear on the cover for three consecutive issues. Wolveroach fell out of the parody niche of Fair Use, because the use wasn't limited; it was sustained. It was so pervasive, it prompted Marvel's lawyers to write a desist letter to Dave Sim.
Basically, that's it, Gang. I know it isn't everything there is to know about copyright and infringement. But I think the overview is sufficient for our purposes. If you have any other questions, please don't ask me.
It's not that I don't want to answer them, it just that I don't do copyright law. My law school didn't even offer a copyright course, when I attended. My knowledge comes from reading the law and from reading Circular R1, Basic Copyright, published by the Copyright Office. This and several other circulars about copyrights are available from the Copyright Office, Library of Congress, Washington, D.C. 20559, if you request them. Do so. The information you get from them will be more complete and better than anything I could give you for your casual inquiries.
If you have finished your creation and are more serious about your copyright inquiry, consult a copyright specialist (you can get a list of them from your local bar association chapter). Sure it's going to cost you more money than asking me, but isn't it worth a little money to know your information's right?
******
BOB INGERSOLL, CBG legal analyst by virtue of his being a public defender, the owner of more comics than even his mother could throw away, and an opinionated SOB, will now keep his old promise to tell you if the priest in Cloak and Dagger # 6 was a vicious drug dealer.
In case you've forgotten, here's how it went. Cloak and Dagger our stalwart heroes learned that a shipment of religious icon statutes intended for a church in New York City and which were to be handed out free during a religious holiday were filled with drugs being smuggled into the country. The priest who was to do the handing out was a confident of Cloak and Dagger's. I figured maybe the priest was part of the drug smuggling operation. Otherwise, if Cloak and Dagger only had the intelligence God gave a network executive, all they'd have to do was tell the priest, hey your statues have drugs in them, don't pass them out, give them to the police and the problem would be solved and end the story rather prematurely. Like on page 3.
But the priest wasn't one of the drug smugglers. And Cloak and Dagger didn't tell him right away that his religious icons were full of heroin, because they didn't know where the statues were. They only knew that some religious icons were full of drugs.
Despite the fact that Cloak and Dagger knew the icons were intended for a parade that day and despite the fact that they knew the local parish was having a parade that day, Cloak and Dagger didn't know where the icons were. Our heroes couldn't put two and two together and come up with the correct sum.
So, no the priest wasn' t a drug dealer. Cloak and Dagger were idiots!
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